Sec 107a

"A man of non-sane memory," it is said by Coke,3. "may, without the consent of another, purchase lands;" and "idiots, madmen, lepers, deaf, dumb, and blind, minors, and all other reasonable creatures, have power to purchase and retain lands and tenements."4 By deed poll a title can thus be granted to a lunatic, although the grantee would be under a legal disability to convey ; and a deed to the lunatic can be perfected by delivery to a third person for his use.5 And it was held in Michigan, in 1881, that a valid delivery of a deed, in consideration of an antecedent indebtedness, may be made to an imbecile, the transaction being fair and beneficial to the imbecile.6

Sec 108

The fact that a person conveying property is insane, there having been no judgment of lunacy against him, and no notice to or negligence on the part of the other side, does not avoid the transfer, when it is so far executed that the parties cannot be put in statu quo. Nor when the contract is so far executed that the prior condition of things cannot be restored, will the contract be afterwards set aside.1 And an endorsement by a lunatic to a promissory note, if without fraud or notice, transfers the title to the note.2 It is true that it has been held in Pennsylvania that a lunatic is not liable on a mere accommodation endorsement.3 But as a rule insanity of the maker of a note is no defence to a suit by a bona fide holder for value without notice.4

Lunatics may take title.

Lunatic may transfer title, and may endorse.

N. J. Eq. 502; S. P. Bassett v. Brown, 105 Mass. 551 ; Allen v. Berryhill, 27 Iowa, 534 ; Breckenridge v. Ormsby, 1 J. J. Marsh. 236 ; Waters v. Barral, 2 Bush, 598. And see as generally sustaining the text, Hovey v. Hobson, 53 Me. 451 ; Allis v. Billings, 6 Mete. 415 ; Arnold v. Richmond Iron Works, 1 Gray, 434 ; Gibson v. Soper, 6 Gray, 279; Howe v. Howe, 99 Mass. 88; Valpey v. Rea, 130 Mass. 384; Eaton v. Eaton, 37 N. J. L. 108 ; Key v. Davis, 1 Md. 82; Chew v. Bank, 14 Md. 299 ; Evans v. Horan, 52 Md. 602; Rusk v. Fenton, 14 Bush, 490; Ashcraft v. De Armand, 44 Iowa, 229; Scanlan v. Cobb, 85 111. 296; Nichol v. Thomas, 53 Ind. 42 ; Freed v. Brown, 55 Ind. 310 ; Elston v. Jasper, 45 Tex. 409.

1 As to distinction, see infra, sec 677.

2 See infra, sec 157 et seq. 3 I. ch. i. sec 1, 'lb.

4 See also 1 Steph. Com. 441; 2 Br. & Had. Com., Am. ed. 714 ; Concord Bank v. Bellis, 10 Cush. 276.

5 Concord Bank v. Bellis, ut supra.

6 Campbell v. Kuhn, 24 Alb. L. J. 217, citing Garnons v. Knight, 5 B. & C. 671; Gould v. Day, 94 U. S. 405 ; Buffnom v. Green, 5 N. H. 71 ; Hastings v. Merriam, 117 Mass. 245 ; Regan v. Howe, 121 Mass. 424 ; Merrills v. Swift, 18 Conn. 257; Tibbals v. Jacobs, 31 Conn. 428; Church v. Gilman, 15 Wend. 656; Mitchell v. Ryan, 13 Oh. St. 377; Hosley v. Holmes, 27 Mich. 416 ; Latham v. Udell, 38 Mich. 238 ; Wesson v. Stephens, 2 Ired. Eq. 557.

1 Elliott v. Ince, 7 De G. M. & G. 475; La Rue v. Gilkyson, 4 Barr, 375 ; Lancaster Co. Bank v. Moore, 78 Penn. St. 407; Wilder v. Weakley, 34 Ind. 181.

2 Caulkins p. Fry, 35 Conn. 170; Miller v. Finley, 26 Mich. 249. That such is the case with infants, see supra, sec 35, 37. See Sentance v. Poole, 3 C. & P. 1, as to which Mr. Parsons, Cont. i. 385, says : "It is difficult to see how one could indorse a bill or note in such a way that its appearance would excite no suspicion, and yet be so drunk as to know nothing of what he was doing; and unless the indorser were utterly incapacitated, it should seem that a third party, taking the note innocently and for value, ought to hold it against him.".

3 Moore v. Hershey, 90 Penn. St. 196; Wirebach v. Bank, 97 Penn. St. 543.

« Pollock, 3d ed. 99 et seq.; State Bank v. McCoy, 69 Penn. St. 204.

In Wirebach v. Bank, ut supra, Trunkey, J., said: "The question now presented is, will an action lie on the accommodation indorsement of a promissory note by a lunatic ? If the determination of this was not made, it was very clearly indicated in Moore v. Hershey, 9 Norris, 196. There the action was by an indorsee against the maker of a promissory note, and evidence was offered to prove that the maker had received no consideration, which fact the plaintiff had admitted in conversation, proof having been made that the maker was insane, but the offer was rejected, the court below ruling that as the note in suit was commercial paper, and the plaintiff a holder for value, the consideration could not be inquired into. If the holder could recover against one who was insane when he indorsed or made the note without consideration therefor, no wider door could be opened for the swindler to despoil such helpless persons of their estates. An infant who makes or indorses a note may by his representative plead his infancy as a complete defence. In like manner a lunatic may plead insanity and want of consideration. If the fact that the holder had paid value were enough, the lunatic could not defend for fraud or want of consideration. Then an innocent holder could recover, though the judgment would sweep away the lunatic's entire estate, and he had not been benefited a farthing. Nor would a nominal sum be sufficient. It is said the law protects those who cannot protect themselves, but it would be sorry protection, if one holding a valid note against a helpless man for $4000 could get it renewed for $10,000, and recover the full amount of the renewal note. The consideration must be fair and sec 109. The fact that a party was insane before executing a particular contract, and was insane afterwards, does not invalidate the contract, if he was sane at the time it was made.1 If, however, such prior and subsequent insanity be proved, the burden is on the party setting up a lucid interval to prove it.2 But periodic and intermittent incapacity (e. g., epilepsy) cannot be presumed to be continuous and permanent.3